So what is Scores complaining about? It says the New York State Liquor Authority (“SLA”) is trying to yank its liquor license in a way that violates the First Amendment. Specifically, the complaint alleges the SLA is going after Scores East’s liquor license based on conduct which (allegedly) occurred at Scores West’s nightclub: guilt by corporate association, in other words.
I don’t think that Scores East likes its odds of winning in the state forum. According to Judge Sullivan’s order, Scores alleged that “the SLA cannot [even] make a competent determination as to its own violation of those rights — especially in an administrative kangaroo court, complete with an SLA facilitated police riot, violation of Scores West’s absolute right to a public (due process) hearing, and fabricated ‘evidence.’” (cites omitted, my alteration). Yikes.
I’ve been tempted to use the pejorative term ‘kangaroo court’ in briefs, but I’ve always refrained. Others have not. The way I see it, if the lower agency/court truly is a marsupial feeding ground, the reviewing court knows it — and probably knew it before you did. Trying to beat down that lower tribunal might not go so well.
Here, Judge Sullivan applied Younger v. Harris, 401 U.S. 37 (1971), and declined to hear the case on abstention grounds. He wrote:
First, it is undisputed that there is an ongoing state proceeding — namely, the revocation proceeding addressing the SLA’s intention to revoke the liquor license held by Scores East — which was scheduled to take place on August 19, 2008 but has since been adjourned sine die. The second condition is also satisfied, since the State of New York has an important interest in regulating the sale of alcoholic beverages and in enforcing the Alcoholic Beverage Control (“ABC”) laws. Finally, the third condition is satisfied because the SLA proceeding, as well as any subsequent appellate review by way of an Article 78 proceeding in the Appellate Division, affords Plaintiff an adequate opportunity for judicial review of its First Amendment claims, as well as any other claims relevant to this action.
Sometimes, and what I mean is rarely, a federal plaintiff can avoid a Younger-abstention determiniation by showing bad faith. That is, the federal plaintiff must show that the state proceeding was initiated with and “is animated by a retaliatory, harassing, or other illegitimate motive.” Not here; the court did not find any exceptions to Younger. It will be interesting to see how this plays out in the state proceedings.